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 FREEDOM OF THE AIR AND THE CONVENTION
ON THE LAW OF THE SEA

By Kay Hailbronner*

I. THE PRESENT LEGAL REGIME

Public international air law is based on two principles. The first recognizes
each state's full and absolute sovereignty over the air above its territory and
territorial waters, including the right to impose its jurisdiction over such air-
space. Thus, a state may require any foreign aircraft in its airspace, even if
only briefly in transit, to comply with its air transport regulations, for example,
those concerning the aircraft and its crew, navigation, and the environment.
This right, however, is subject to those international treaty obligations the
state has assumed in the interest of safe and efficient air transport. The Con-
vention on International Civil Aviation' (hereinafter referred to as Ihe Chicago
Convention), generally regarded as the Magna Charta of public international
air law, requires each contracting state to "collaborate in securing the highest
practicable degree of uniformity in regulations, standards, procedures and
organization in relation to aircraft, personnel, airways and auxiliary services
in all matters in which such uniformity will facilitate and improve air navi-
gation." 2 To this end, the International Civil Aviation Organization (ICAO)
was granted the power to adopt international standards and recommended
practices and procedures dealing with matters such as communication systems
and air navigation aids, rules of the air and air traffic control practices, as well
as registration and identification of aircraft. Contracting states, however, re-
tained the right to depart from such standards or recommended practices,
provided they notified the Organization of the differences between their na-
tional regulations and those prescribed by an international standard.'
The second principle acknowledges the area above the high seas as an aerial
highway open to all nations and not subject to the sovereignty of any state.
The customary law principle of freedom of overflight,4 recognized also in
Article 2 of the Geneva Convention on the High Seas,5 is the basis for Article
* Professor of Law, University of Konstanz, Federal Republic of Germany. I would like to
acknowledge my appreciation to Wolfgang W. Fritzerneyer of the New York Bar for his assistance
in some of the research and in the editing of this article.
'Done Dec. 7, 1944, 61 Stat. 1180, TIAS No. 1591, 1956 Bundesgesetzblatt [BGBI] 11411,
15 UNTS 295.
2 Id., Art. 37.
3 See T. BUERGENTHAL, LAW-MAKING IN THE INTERNATIONAL CIVIL AVIATION ORGANI-
ZATION 57 etseq. (1969); N. MATTE, TRAIT-DEDROITAERIEN-A-RONAUTIQUE 195-97(1964);
J. ERLER, RECHTSFRAGEN DER ICAO 131 et seq. (1967).
4See J. C. COOPER, Space Above the Seas, in ExPLORATIONS IN AEROSPACE LAW, SELECTED
EssAYS BYJOHN COBB COOPER 194 (I. A. Vlasic ed. 1968); Goedhuis, Sovereignty and Freedom
in the Air Space, 41 GROTIUS Soc'y TRANSACTIONs 137 (1956).
5 13 UST 2312, TIAS No. 5200, 1972 BGBI.II 1089, 450 UNTS 82.

490
1983] FREEDOM OF THE AIR

12 of the Chicago Convention, which states that "over the high seas the rules
in force shall be those established under the Convention." Compliance with
these rules is therefore obligatory for the contracting states. ICAO's legislative
power in this regard is clearly intended to prevent divergences in national
regulations that might pose navigational hazards to international air transport.
In practice, it has been accepted that it is up to the Council of ICAO to
designate certain rules relating to the flight and maneuver of aircraft over the
high seas as mandatory, while states may deviate from any other rules not so
designated. 6
Since national air traffic control authorities may extend their services to the
airspace above the high seas, it has been considered impractical to change
flight regulations whenever an aircraft passes from national airspace to the
airspace above the high seas. The Council of ICAO has therefore authorized
any contracting state that provides air traffic control services over the high
seas to apply the regulations under Annex 1 to its Rules of the Air "in a7
manner consistent with [those] adopted for airspace under its jurisdiction."
Otherwise, each state would have two sets of air traffic service regulations,
one applicable to the airspace above its own territory, the other to the airspace
over the high seas where it provides air traffic control services. It was also
feared that mandatory application of the ICAO standards might deter states
from supplying air traffic control services over the high seas.'
By developing a uniform aviation code widely accepted by states, the Chi-
cago system has made considerable progress in promoting safe and efficient
international air transport. The Chicago Conference, however, did not suc-
ceed in establishing a multilateral air transport scheme providing for freedoms
of overflight and landing.9 Therefore, the granting of traffic rights remained
essentially within the domain of each state's sovereign powers. Under custom-
ary international law, every flight over foreign territory is subject to the con-
sent of the overflown state. Even the right of innocent passage, customarily
accorded to ships passing through the territorial sea, has never been extended
to foreign aircraft flying over the territorial sea.' ° In addition, there are no
general transit rights relating to international airways, analogous to the law
6
T. BUERGENTHAL, supra note 3, at 83.
7
See ICAO Council Doc. 7037 (C 814) at 29-30 (1951); cf Carroz, InternationalLegislation on
Air Navigation over the High Seas, 26 J. AIR L. & CoM. 158, 168-71 (1959).
"T. BUERGENTHAL, supra note 3, at 83; Carroz, supra note 7, at 171; J. ERLER, supra note
3, at 144.
9According to Article 5, only aircraft not engaged in scheduled international air services shall
have the right to make flights into or innocent transit nonstop across a foreign state's territory
and to make stops for nontraffic purposes without having to obtain prior permission, and subject
to the right of the overflown state to require landing. The attempt to establish a multilateral treaty
regime by the International Air Transit Agreement (1956 BGBI.II 442) and the International
Air Transport Agreement (for a text, see 2 INTERNATIONAL CIVIL AVIATION CONFERENCE,
PROC. 434 (1949)) failed for lack of a sufficient number of ratifications; cf N. MATTE, supra note
3, at 241; W. SCHWENK, HANDBUCH DES LUFTVERKEHRSRECHTS 360-61 (1981); Lissitzyn,
Freedom of the Air: Scheduled and Non-Scheduled Air Services, in THE FREEDOM OF THE AIR 89 (E.
McWhinney & M. Bradley eds. 1968); D. JOHNSON, RIGHTS IN AIRSPACE 58 etseq. (1965).
" La Pradelle, Les Frontires de Pair, 86 RECUEIL DES COURS 117, 139 et seq. (1954 II);
O'Connell, Innocent Passageof Warships,in 7 THESAURUS ACROASIUM 405,446-47 (1977); Moore,
492 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

of the sea concept of straits used for international navigation. Instead, a net-
work of bilateral air transport agreements providing for reciprocal traf-
fic rights today forms the pattern of international commercial air trans-
portation. 1
Under normal circumstances, obtaining permission to pass through foreign
airspace will raise no major problems. In extraordinary situations, however,
passage rights may be withheld or traffic rights suspended in order to exert
political pressure. The freedom of overflight essential to international aviation
may be restricted severely as a result of the establishment of prohibited zones,
the unreasonable enforcement of national regulations relating to the flight
and maneuver of aircraft, or simply the exercise of excessive state control
over foreign aircraft in transit. There is sufficient state practice to show that
such measures have been taken in the course of conflicts, particularly when
the status of a territory was disputed. 2 In those circumstances, the freedom
of the airspace above the high seas may provide the only means of maintaining
international air services with a third country. Therefore, the regime of the
high seas considerably affects commercial aviation interests.
This statement applies a fortiori to state aircraft. State aircraft, defined as
aircraft used in military, police, and customs services, are excluded from the
scope of the Chicago Convention and are therefore mainly subject to national
regulation.'" With regard to rights of overflight for foreign military aircraft,
states are generally reluctant to incur far-reaching obligations. On the whole,
freedom of overflight is granted only in particular situations and with the
proviso of revocability. Therefore, freedom of the airspace above the high
seas is essential to those states whose air forces are poised for flight to any
part of the world where their interests are challenged. In a critical situation,
military aircraft will need a direct and speedy route to the crisis area. Re-
routing or the need to ask for permission to overfly might substantially di-
minish their efficiency. John Norton Moore underlined the strategic impor-

The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 AJIL 77, 85
(1980).
11W. SCHWENK, supra note 9, at 361, has estimated that in 1979 there were aFproximately
2,924 bilateral air transport agreements in force.
"2Regarding the dispute between India and Pakistan on the establishment of prol-ibited zones
by Pakistan, which cut off all direct flight routes between the two countries, see N. MATTE, SUpra
note 3, at 182-83;J. ERLER, supra note 3, at 192. Similar incidents have occurred as a consequence
of border disputes between Greece and Turkey, Israel and the Arab states, and Spain and Great
Britain.
13 See generally MING-MIN PENG, LE STATUTJURIDIQUE DE L'AERONEF MILITAIRFE (1957).
Article 3(c) of the Chicago Convention explicitly provides that no state aircraft of a contracting
state shall fly over the territory of another state or land thereon without authorization, by special
agreement or otherwise, and only in accordance with the terms thereof. ICAO's international
aviation code also does not apply to state aircraft. Contracting states only undertake, when they
issue regulations covering their state aircraft, to have due regard to the safety of navigation of
civil aircraft. In practice, national rules relating to the flight and maneuver of aircraft will normally
correspond to ICAO's international standards. With some exceptions for military aircraft, those
standards apply as well to state aircraft. For an account of the regulations applicable in the Federal
Republic of Germany, see W. SCHWENK, supra note 9, at 152-54.
19831 FREEDOM OF THE AIR

tance of freedom of the airspace over the high seas to the United States when
he reported that overflight of land territory during the Yom Kippur War was
denied to the United States even by its NATO allies. 4 Similarly, smaller states
asked for such permission might refuse it in order to avoid any involvement
in a conflict.
The new legal regime of the oceans reflected in the Convention on the Law
of the Sea' 5 (hereinafter referred to as the Convention) is obviously of par-
amount importance to the freedom of the air above the oceans. Any extension
of sovereign or "quasi-sovereign" jurisdictional powers restricts the freedom
of movement of aircraft above the high seas. Thus, the extension of the
territorial sea to 12 miles will bring the airspace over the world's most im-
portant international straits such as Gibraltar, Hormuz, Bab el Mandeb,
Dover, and Malacca under territorial control. 6 Since innocent passage does
not embrace any right of overflight, the passage of aircraft will be subject to
the coastal state's consent. In addition, recognition of a 200-mile exclusive
economic zone might imply authority over movement of aircraft, including
restrictions with respect to overflight. Roughly 40 percent of the surface of
the world's oceans lies within 200 miles of the shore. 17 If this vast area ever
comes to be regarded by coastal states as being wholly or partially subject to
their sovereignty relating to flight activities, the traditional concept of the
freedom of the air might be drastically curtailed.
In examining some of the air law implications of the Convention, two main
issues arise. The first concerns the scope of the right of transit passage for
aircraft guaranteed by the Convention in international straits, archipelagic air
routes, and exclusive economic zones. The term "transit passage" raises the
question of possible restrictions on rights of overflight on the analogy of the
traditional concept of innocent passage. Closely related to this issue is the
question of "creepingjurisdiction." The Convention has introduced new areas
of conflicting rights. International aviation, which is dependent on unambig-
uous operating rules, may have to face conflicting claims and legal require-
ments because of the uncertainties in the legal status of those new areas. The
most evident uncertainty concerns the application of the ICAO Rules of the
Air, which are mandatory in the airspace above the high seas. In addition,
jurisdictional claims by coastal states concerning the protection of the envi-
ronment, weather modification by aircraft, or military activities in the exclu-
sive economic zone may lead to excessive restrictions on foreign aircraft and
possible hazards to international aviation.
14Moore, supra note 10, at 84.
s This article was written on the basis of the text of the Convention agreed upon at the 10th
session, UN Doc. A/CONF.62/L.78, of Aug. 28, 1981. No changes were made in the relevant
provisions in the final text of Oct. 7, 1982, UN Doc. A/CONF.62/122, reprintedin 21 ILM 1261
(1982), and opened for signature on Dec. 10, 1982. For the codification process within the United
Nations, see Hailbronner & Fritzemeyer, Das Recht der Vereinten Nationen (2. Teil)--Rechtsquellen,
Zustiindigkeiten und Arbeitsweise, 13 JURISTISCHE ARBEITSBL.ATTER 437, 444 et seq. (198 1).
16Richardson, Power, Mobility and the Law of the Sea, 58 FOREIGN AFF. 902, 905-06 (1980);
Moore, supra note 10, at 79.
17Vitzthum, Die Gleichschaltungvon Land und Meer, in DIE PLUNDERUNG DER MEERE 49, 60
et seq. (W. Graf Vitzthum ed. 1981).
494 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

The records show that air law implications of the new law of the sea received
little attention at the Third Law of the Sea Conference."8 Interpretation of
the Convention therefore has to rely considerably on the general discussion
about the legal status of the new areas. Undoubtedly, when the Convention
enters into force, new questions may arise that are not foreseen here.
It should be noted that recent announcements by the U.S. Government
that it will not ratify the Convention and the reservations expressed by a
number of other states 9 do not affect the relevance of our topic. Air law
implications of the new law of the sea are mainly related to the legal regimes
of territorial waters, international straits, and the exclusive economic zone.
If the deep sea mining concept of the Convention should fail, owing to the
strong objections of those states capable of engaging in such activities, large
parts of the Convention will still have effects on states that have not ratified
it. The extension of the territorial sea and the establishment of exclusive
economic zones are the result of developments that took place independently
of the Convention.2" This does not necessarily mean that the scope of rights
and duties in those areas, as laid down in the Convention, already reflects
customary international law. As a part of evolving customary international
law, however, those parts of the Convention on which consensus was reached
will determine the rights and duties of states in a particular conflict. In this
context, it has to be taken into account that many provisions were the result
of compromise. 2i The acceptance of "creeping jurisdiction" for the coastal
state corresponds, therefore, to enlarged transit rights for aircraft, so that
exclusive rights and jurisdiction may be exercised only in accordance with the
limitations provided for in the Convention.

II. AIRSPACE ABOVE INTERNATIONAL STRAITS

Article 2 of the Convention reiterates the generally recognized principle

of sovereignty over the airspace above the territorial sea. The right of innocent
passage through the territorial sea (Article 17ff.) does not include the passage
of aircraft. Innocent passage is considered to be prejudicial to the peace, good
order, or security of the coastal state if a ship engages in the launching, landing,
or taking on board of any aircraft (Article 19(2)(e)). To this extent, the legal

1" For a summary of the issues raised at the last session, cf UN Press Release SFA/494, Apr.
30, 1982; see THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, OFFICIAL
RECORDS; see also THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE. SEA, Docu-
MENTS (Werkhefte Nos. 26, 27, and 29 of the Institut f'dr Internationale Angelegenheiten der
Universitit Hamburg, R. Platz6der ed. 1975,1976); 1-3 DOKUMENTEDER DRITTEN SEERECHTS-
KONFERENZ DER VEREINTEN NATiONEN, NEW YORKER SESSIONEN (R. Platzbder ed. 1976).
19 Cf. Frankfurter Allgemeine Zeitung, July 10, 1982, at 5; H. G. KNIGHT, CONSEQUENCES
OF NON-AGREEMENTS AT THE THIRD U.N. LAW OF THE SEA CONFERENCE (Studies in Transna-
tional
20
Legal Policy No. 11, 1976).
Cf statement by the Government of the Federal Republic of Germany, in STAND, ENTWICK-
LUNG UND MOGLICHE KONSEQUENZEN DER 3. SEERECHTSKONFERENZ DER VEREINTEN
NATIONEN, Bundestagsdrucksache No. 9/1171 Uune 22, 1981); see also Eitel, Seerechtsreform und
InternationalePolitik, 107 ARCHIV OFFENTLICHEN RECHTS 100 (1982).
21 Vitzthum, supra note 17, at 67 et seq.
1983] FREEDOM OF THE AIR

regime of the Convention does not differ from the rules of the Geneva Con-
vention on the High Seas.
Article 38, however, stipulates that in straits used for international navi-
gation between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone all aircraft enjoy
the right of transit passage, which shall not be impeded. Obviously, the right
of transit passage is meant to eliminate possible detrimental consequences to
international aviation from the extension of the territorial sea to 12 nautical
miles (Article 3). The right of transit passage is defined in Article 38(2) as the
"exercise in accordance with this Part of the freedom of navigation and
overflight solely for the purpose of continuous and expeditious transit of the
strait between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone." The require-
ment of continuous and expeditious transit, however, "does not preclude
passage through the strait for the purpose of entering, leaving or returning
from a State bordering the strait, subject to the conditions of entry to that
State" (cf. the last sentence of Article 38(2)).
The freedom of overflight of international straits conferred by Article 38
raises various questions as to the power of states bordering straits to restrict
that freedom and impose obligations on aircraft in transit. Transiting aircraft
may considerably affect a littoral state's interests in regulating flight traffic,
limiting dangerous or harmful activities such as flight exercises or refueling
while in flight, and restricting military activities prejudicial to the defense or
security of the coastal state. Spain, which opposed any right of overflight,
therefore criticized the 1978 draft proposal for not specifying what activities
were to be prohibited to aircraft. Moreover, the proposal did not meet with
the Spanish delegation's approval because it did not expressly stipulate the
laws and regulations that states bordering straits would be permitted to enact
in relation to overflight, and because it did not refer to air corridors, which,
on the analogy of the sea lanes provided for in the transit passage regime
itself, would have to be established.22
Similar criticism was raised by Morocco and Greece. The Moroccan dele-
gation suggested an amendment to Article 39, paragraph 3, providing that
aircraft in transit must refrain from activities such as exercises or firing prac-
tice, the use of weapons, the taking of photographs, low-altitude and dive-
bomber flying, in-flight refueling, and interference with telecommunica-
tions.2" The Moroccan proposal added that aircraft in transit should
take proper care not to violate the regulations governing air corridors
and altitude of flights above the strait as fixed by the State bordering
the strait, and to avoid flying over its territory rising above the water,
insofar as the air corridor established by the State bordering the strait
does not provide for such overflight.
A Greek amendment would have expanded the provision on the coastal state's

2 Conf. Doc. C.2/Informal Meeting/4 (Apr. 26, 1978); see also UN Doc. A/CONF.62/WS/
12, at 2 (Oct. 31, 1980).
2 Conf. Doc. C.2/Informal Meeting/22 (Apr. 28, 1978).
496 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

power to regulate transit passage through straits in respect of the "safety of

navigation and the regulation of marine traffic" (cf.Article 42(1)(a)) by adding
the words, "as well as the safety of air traffic and the rules, regulations and
procedures of ICAO. ' '2 4 Greece suggested another amendment that would
have enabled countries bordering straits under their sovereignty to designate
predetermined air routes and prescribe traffic procedures for air navigation
in straits in the interest of safe and efficient passage.
Neither amendment was approved.25 Nevertheless, the final text makes
clear that transit passage is not guaranteed without limitations. Paragraph 1
of Article 39 provides:
Ships and aircraft, while exercising the right of transit passage, shall:
(a) proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty,
territorial integrity or political independence of States bordering the
strait, or in any other manner in violation of the principles of interna-
tional law embodied in the Charter of the United Nations;
(c) refrain from any activities other than those incident to their normal
modes of continuous and expeditious transit unless rendered necessary
by force majeure or by distress;
(d) comply with other relevant provisions of this Part.

The wording of subparagraph (c) may embrace even more duties than those
implied by the amendment suggested by Morocco. The concept of transit
passage provided for by subparagraph (c) excludes any activity that is not a
constituent part of the transit flight. Article 39, however, does not answer the
question whether a coastal state may adopt laws and regulations relating to
transit passage of aircraft and whether a coastal state has the right to interfere
with aircraft in transit not complying with its municipal law or the require-
ments under Article 39 itself. The Convention confers prescriptive authority
on states bordering international straits with respect to the transit passage
only of ships. Legislative powers concerning pollution control, navigational
safety, customs regulations, etc., apply exclusively to foreign ships exercising
the right of transit passage, as Article 42(4) indicates. Article 41, which deals
with sea lanes and traffic separation schemes in straits used for international
navigation, also does not accord states bordering straits the power to prescribe
international air routes and air corridors. The wording of Article 41 clearly
covers only the transit passage of ships. Since Articles 38-44 expressly dif-
ferentiate between ships and aircraft, navigation and overflight, it can hardly
be assumed that legislative authority explicitly granted with respect to navi-
gation and ships applies-by analogy or otherwise-to aircraft in transit.
On a first reading, Article 42(5) seems to support a different view. The
obligation to bear international responsibility incumbent on the state of reg-
istry of an aircraft that is entitled to sovereign immunity rests on the as-
sumption that the aircraft acts "in a manner contrary to such laws and reg-
ulations or other provisions of this Part." This assumption, however, does not
24 UN Doe. A/CONF.62/L.123 (1982).
21See UN Press Release, supra note 18, at 38.
19831 FREEDOM OF THE AIR

imply that regulations adopted under Article 42 may refer to aircraft in transit.
Article 42(4) relates, in the case of ships, to national regulations and laws
adopted under that article, as well as to other obligations under the Conven-
tion; in the case of aircraft, responsibility is exclusively based on violations of
international duties under Article 39.
Nevertheless, it may be argued that the straits regime under the Convention
is ambiguous in allowing a coastal state discretion to control aircraft and ships,
to discriminate among users, and to interfere with their right of navigation
and overflight. 26 After all, the Convention does not explicitly exclude recourse
to a coastal state's power to enforce its laws and regulations in the airspace
above its territorial sea. Thus, on the analogy of the innocent passage concept,
a state bordering straits would be deemed to have those powers which it
considers necessary to protect its interests.
Again, regulatory authority relating to transit passage and unilateral en-
forcement powers have to be treated separately. As far as regulatory com-
petence is concerned, both the wording and the negotiating context argue
against the conclusion that the coastal state's legislative authority extends be-
yond the powers expressly granted by Article 42. This regulatory authority
may be exercised only under special conditions and applies mainly to the
implementation of international regulations previously adopted and to fishing
and loading activities of ships. All amendments to extend this catalog of rights
were rejected in order to prevent conflicts from arising out of uncertainties
over the legal rights and obligations of ships in transit. As for aircraft in transit,
regulatory authority presumably is denied since, unlike the activities of ships
in transit, those of aircraft have not been considered potentially prejudicial
to the basic interests of states bordering straits.
Any analogy to the powers of a coastal state with respect to the innocent
passage of ships through its territorial waters also seems ill-founded because
the straits transit regime is evidently covered separately by the provisions of
part III of the Convention. Article 45 mentions two exceptional cases in which
the regime of innocent passage applies, and Article 36 specifies another ex-
ception relevant only to navigation; thus, further reference to the innocent
passage regime is excluded. In addition, statements of delegations during the
conference cited by Professor Moore2 7 demonstrate beyond any doubt that
the regime of international straits was adopted in clear contrast to the doctrine
of innocent passage, which was generally regarded as an inappropriate ap-
proach to the problem of transit through straits.
Article 38(3), which provides that "[a]ny activity which is not an exercise
of the right of transit passage through a strait remains subject to the other
applicable provisions of this Convention," also does not permit the inference
of any regulatory powers to the coastal state. Its purpose is to make clear that
activities not covered by the transit passage privilege remain subject to any

" Darman, TheLawoftheSea: RethinkingU.S.Interests, 56 FOREIGN AFF. 373(1977-78); Reisman,

The Regime of Straits and National Security: An Appraisal of InternationalLawmaking, 74 AJIL 48
(1980); cf also Knight, The 1971 United States Proposalon the Breadth ofthe TerritorialSea and Passage
through Straits, 51 ORE. L. REV. 759 (1974).
17 Moore, supra note 10, at 93 et seq.
498 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

other provisions of the Convention dealing with such activities; and it therefore
implies that transit passage itself is not subject to other provisions of the
Convention, particularly those giving a coastal state regulatory authority with
respect to innocent passage in the territorial sea.
The coastal state's lack of regulatory powers over aircraft in transit does
not change the legal status of the airspace above international straits. Article
34 states that the regime of passage through straits used for international
navigation "shall not in other respects affect the legal status of the waters
forming such straits or the exercise by the States bordering the straits of their
sovereignty or jurisdiction over such waters and their air space, bed and sub-
soil." Paragraph 2 of Article 34 indicates that sovereignty may not be used
as a claim to supplementary regulatory and enforcement powers over the
passage of ships and aircraft. Sovereignty orjurisdiction can only be exercised
subject to the provisions in part III of the Convention and to other rules of
international law. Restrictions on the freedom of overflight not consistent with
the legal regime of transit passage under the Convention are therefore not
admissible. 28 However, since the exercise of sovereignty or jurisdiction "in
other respects" is not affected by the Convention, aircraft in transit remain
subject to a coastal state's general municipal law.
It may not always be easy to draw the line between sovereignty or juris-
diction "in other respects" and the inadmissible regulation of the passage of
foreign aircraft. The crucial test will be whether the application of municipal
law implies restrictions on the right of overflight granted by the Convention.
Municipal law specifications concerning the plane, its crew and passengers, its
flight route, noise and emission standards, etc., may not be applied to aircraft
in transit, though the crew and passengers remain subject to coastal state
jurisdiction in criminal and civil law matters. As noted earlier, Article 39
obliges aircraft to refrain from any activities not incidental to "normal" transit
passage. Although this provision cannot be interpreted as giving supplemen-
tary regulatory authority to the state bordering the strait, that state is not
precluded from making any violation of the international obligations of air-
craft in transit a criminal offense.
However, a breach of its duties under the Convention or municipal law by
an aircraft in transit does not necessarily give a state bordering straits the
right to take unilateral action to prevent passage "prejudicial to the peace,
good order or security." The authority of a coastal state under Articles 25
and 30 to take the necessary steps in its territorial sea to prevent noninnocent
passage is not applicable, by analogy, to the legal regime of passage through
international straits. In contrast to the innocent passage regime, part III does
not expressly permit coastal states to interfere with passage under specific
circumstances. Rather, it is laid down in Article 44 that "States bordering
straits shall not hamper transit passage and shall give appropriate publicity to
any danger to navigation or overflight within or over the strait of which they
have knowledge. There shall be no suspension of transit passage."

2
1Jaenicke, Die Dritte Seerechtskonferenz der Vereinten Nationen, 38 ZEITSCHRIFT 1UR AUSLAN-
DIScHEs RECHT UND VOLKERRECHT [ZA6RV] 438, 471 et seq. (1978).
1983] FREEDOM OF THE AIR

Nevertheless, this provision has been interpreted as not excluding a coastal

state's right to secure compliance with an aircraft's duties. A coastal state, as
W. Michael Reisman observed, might still be able to characterize passage as
"nontransit" and to deny passage unilaterally.2 9 In support of this view, it
may be argued that anything less than the power to take unilateral enforce-
ment measures might substantially endanger a coastal state's vital interests.
In its own sovereign airspace, a state will usually not rely solely on diplomatic
and judicial procedures for the solution of a conflict. Therefore, the Con-
vention cannot be presumed as having deprived states bordering straits of
their sovereign rights to enforce the law within their own airspace.
Some may read Article 42(5) as implying enforcement powers in case of
nonimmune vessels and aircraft, but this interpretation is not logically re-
quired. The paragraph may be more reasonably understood as making it clear
that sovereign immunity does not relieve the flag state or state of registry
from international responsibility in case of a violation. Therefore, no inference
can be drawn from that paragraph one way or another about the enforcement
powers of a coastal state.
Moore has convincingly demonstrated by a thorough analysis of the wording
and the negotiating context that the Convention carefully separates flag state
duties from the definition of transit passage rights.30 In order to avoid rep-
etition, his arguments may be summarized as follows: in contrast to Article
19, which provides that passage "shall be considered to be prejudicial...
if," Article 39 says, "[s]hips and aircraft, while exercising the right of transit
passage, shall." In addition, Moore cites early draft articles and various state-
ments of delegates indicating that transit passage rights should not be linked
with vague duties or restrictions that could lead to confrontation.3 ' Moreover,
other provisions of the Convention clearly distinguish between mere "flag
state obligations" of ships in international straits and coastal state authority
to take enforcement action. Article 233 gives the right to interfere with the
passage of ships only if a foreign ship has committed a violation of its duties
under subparagraphs (a) or (b) of Article 42(1), "causing or threatening major
damage to the marine environment of the straits."
The distinction made by the Convention between the regime of innocent
passage in the territorial sea and the regime of transit passage in international
straits would be eliminated if sovereignty could be understood as a superseding
right to take unilateral action in order to prevent transit passage. It must be
kept in mind that restrictions on the exercise of sovereign powers were con-
ditional on a vast extension of the territorial sea in favor of coastal states.
Thus, a coastal state must not deny passage or take any enforcement measures
against aircraft in transit that violate their duties under Article 39. Under the
Convention, conflicts will usually have3 2to be resolved solely through the normal
diplomatic and judicial proceedings.

29 Reisman, supra note 26, at 70. 0 Moore, supra note 10, at 102 et seq.
11Id. at 104.
S2 It is doubtful whether compulsory settlement procedures, provided for in part IV of the
Convention, apply to disputes arising out of allegations that a state has abused its right of overflight
above international straits. Article 297(1) provides for compulsory jurisdiction:
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

In exceptional circumstances, the reference to international dispute settle-

ment procedures may be insufficient to protect a coastal state's vital interests.
It is doubtful whether resort by a coastal state to its sovereign enforcement
powers is also precluded by the regime of transit passage if its security is
imminently endangered by an aircraft flying in the airspace above interna-
tional straits. Even before the regime of transit passage came to be accepted
at the Law of the Sea Conference, states laid claim-on the basis oftnecessity-
to air defense identification zones in the airspace above the high seas. However,
the legality of establishing large defense zones in which foreign aircraft not
complying with certain identification requirements could be intercepted is still
doubtful under customary international law (see infra pp. 515-19). The Con-
vention cannot be presumed to have barred all recourse to the use of en-
forcement measures in the airspace above international straits. In case of a
"threat or use of force against the sovereignty, territorial integrity or political
independence of States bordering the strait" (Article 39(1)(b)), the inherent
right of self-defense is not impaired by the Convention.
Beyond the right of self-defense in the case of an armed attack, a coastal
state must also be able to protect its vital security interests in its airspace by
taking unilateral enforcement action against imminent dangers resulting from
activities of an aircraft in transit. Sovereignty over international straits and
their airspace implies enforcement rights with respect to a coastal state's vital
security interests. This does not amount to abandonment of the concept of
guaranteed transit passage. The de-linkage, in the regime of international
straits, of rights of transit passage, on the one hand, and duties of transiting
ships, on the other hand, is valid in all matters covered by the Convention
like pollution control, technical requirements as to the aircraft and its crew,
or other activities not incident to the transit passage (Article 39(1)(c)). It applies
as well to the general protection of a coastal state's security interests by the
establishment of prohibited zones, as demonstrated by Article 52, paragraph
2 in the case of archipelagic sea lanes passage. The protection of a state's vital
security interests against imminent dangers requiring immediate reaction,
however, is a matter not regulated by the Convention and, therefore, not
included in the scope of mere "flag state duties," precluding a state from
taking enforcement action in its airspace. The right to deny transit passage,
however, must be interpreted very narrowly in order to avoid any undue
interference with the freedom of overflight. The danger to vital security in-
terests must be evident, leaving a coastal state no other choice than immediate
action if irreparable damage is to be avoided.

(a) when it is alleged that a coastal State has acted in contravention of the provisions of
this Convention in regard to the freedoms and rights of navigation, overflight or the laying
of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea
specified in article 58;
(b) when it is alleged that a State in exercising the aforementioned freedoms, rights or
uses has acted in contravention of this Convention or of laws or regulations adopted by the
coastal State in conformity with this Convention and other rules of international law not
incompatible with this Convention.. ..
Cf. Bernhardt, Die Streitbeilegungim Rahmen der Neuordnung des Seerechts, 38 ZACRV 971 et seq.
(1978); Platzider, Meerengen, id. at 710, 730-31.
1983] FREEDOM OF THE AIR

Article 12 of the Chicago Convention makes compliance with ICAO's Rules

of the Air mandatory in the airspace above the high seas. The Convention
extends such mandatory compliance to civil aircraft in transit over interna-
tional straits. Article 39, paragraph 3 says:
Aircraft in transit passage shall:
(a) observe the Rules of the Air established by the International Civil
Aviation Organization as they apply to civil aircraft; state aircraft will
normally comply with such safety measures and will at all times operate
with due regard for the safety of navigation;
(b) at all times monitor the radio frequency assigned by the competent
internationally designated air traffic control authority or the appropriate
international distress radio frequency.
Article 39, paragraph 3 therefore ensures uniform application of ICAO's
aviation code with respect to civil aircraft, and thus excludes possible diver-
gences between a coastal state's municipal law relating to the flight and ma-
neuver of aircraft and the international Rules of the Air. State aircraft, how-
ever, are not strictly obliged to comply with ICAO's Rules of the Air. The
Convention does not indicate which criteria should be applied in defining the
term "normal." Consequently, subparagraph (a) of Article 39(3) leaves con-
siderable discretion to deviate from the Rules of the Air. Since the legal regime
of transit passage precludes use of the littoral state's regulatory authority to
fill this gap, state aircraft and, in particular, transiting military aircraft may
follow their own rules relating to the flight and maneuver of aircraft. The
Spanish delegation raised strong objections to Article 39(3), arguing that state
aircraft deemed to be "abnormal" would represent a hazard to air navigation,
the populations bordering the straits, and the safety of the states over which
they fly."3 Spain's proposal to delete the word "normally" from the provision, 34
however, received only 21 votes in favor, with 55 against and 60 abstentions.
The result of this vote underlines the great importance attached by a large
number of states to the unimpeded military and civil use of airways above
international straits.

III. AIRSPACE OVER ARCHIPELAGIC SEA LANES

The special geographic situation of archipelagic states, meaning states con-

stituted wholly by one or more groups of islands, "including parts of islands,
interconnecting waters and other natural features which are so closely inter-
related that such islands, waters and other natural features form an intrinsic
geographical, economic and political entity" (Article 46), has led to a slightly
different regime of passage for aircraft from the transit passage regime in
international straits. Since the sovereignty of an archipelagic state extends to
the airspace above the archipelagic waters, basically the same problems arise
with respect to the regulatory authority and the enforcement powers of the
archipelagic state with regard to aircraft in transit. Vast water areas may be

s UN Doc. A/CONF.62/WS/12, supra note 22, at 2.

s4 UN Press Release, supra note 18, at 38.
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

subject to the sovereignty of an archipelagic state, which may considerably

impair aviation on international routes. The Convention-though recognizing
larger security interests of archipelagic states with regard to transiting foreign
ships-has established a regime of passage for aircraft very similar to the
regime of passage over international straits. Under Article 53, paragraph 2,
all aircraft enjoy the right of archipelagic sea lanes passage in air routes. Such
passage means "the exercise in accordance with this Convention" of the right
of "overflight in the normal mode solely for the purpose of continuous, ex-
peditious and unobstructed transit between one part of the high seas or an
exclusive economic zone and another part of the high seas or an exclusive
economic zone" (Article 53(3)).
Unlike states bordering international straits under Article 41, however, the
archipelagic state may designate special air routes suitable for the continuous
and expeditious passage of foreign aircraft over its archipelagic waters and
the adjacent territorial sea (cf.Article 53(1)). The Convention gives a number
of criteria for the establishment of such air routes. They "shall traverse the
archipelagic waters and the adjacent territorial sea and shall'include all normal
passage routes used as routes for international. . . overflight" (Article 53(4)).
"[A]ircraft in archipelagic sea lanes passage shall not deviate more than 25
nautical miles to either side" of the axis lines from the entry point; of passage
routes to the exit points, "provided that such. . . aircraft shall not navigate
closer to the coasts than 10 per cent of the distance between the nearest points
on islands bordering the sea lane" (Article 53(5)). The archipelagic state may
not designate or substitute sea lanes according to its own discretion. Article
53, paragraph 9 obliges the archipelagic state to "refer proposals to the com-
petent international organization with a view to their adoption." The orga-
nization may adopt such sea lanes in agreement "with the archipelagic State,
after which the archipelagic State may designate, prescribe or substitute
them."
Beyond this right, there is no regulatory authority or enforcement power
with regard to aircraft in transit. Article 54, by providing for the application
"'mutatis mutandis" of Articles 39, 40, 42, and 44 to archipelagic sea lanes
passage, indicates that transit passage of aircraft over archipelagic waters is
subject to the same international rules as transit passage of aircraft in inter-
national straits.3 5 The right of the archipelagic state to suspend innocent pas-
sage temporarily in specified areas of its archipelagic waters, if such suspension
is essential to the protection of its security, explicitly applies only to transiting
ships. Obviously, temporary suspension of passage amounting to the estab-
lishment of prohibited zones for military reasons was not considered a nec-
essary precaution with regard to transiting aircraft. Again, the Convention
clearly shows its intention to guarantee an unimpeded right of archipelagic
sea lanes passage that is not supposed to be subject to claims of unilateral
enforcement action. Still, we would suggest that, as in the case of states bor-
dering international straits, the archipelagic state in exceptional circumstances
is not precluded from asserting its sovereign right to take immediate action

" Moore, supra note 10, at 110-11.

19831 FREEDOM OF THE AIR

against imminent dangers to its security interests resulting from transiting

aircraft.

IV. AIRSPACE ABOVE THE EXCLUSIVE ECONOMIC ZONE

The Legal Nature of the EEZ and the Coastal State'sJurisdiction

The exclusive economic zone (EEZ) is defined by the Convention as "an
area beyond and adjacent to the territorial sea, subject to the specific legal
regime established in this Part, under which the rights and jurisdictions of the
coastal State and the rights and freedoms of other States are governed by the
relevant provisions of this Convention" (Article 55). The Convention only
very obliquely refers to the legal rights and obligations of states with regard
to aircraft in the airspace above the EEZ. In particular, the Convention is
silent on the rights of third states vis-a-vis the civil aviation jurisdiction of the
coastal state in the airspace above the EEZ and the applicability of ICAO's
aviation code, mandatory for aircraft above the high seas. Moreover, the
negotiating context provides little guidance. The air law implications of part
36
V belong to the neglected issues of the new law of the sea.
Paragraph I of Article 58 provides that in the EEZ all states
enjoy, subject to the relevant provisions of this Convention, the freedoms
referred to in article 87 of navigation and overflight . . . and other
internationally lawful uses of the sea related to these freedoms, such as
those associated with the operation of ships [and] aircraft . . . . and
compatible with the other provisions of this Convention.
Article 87 sets forth the basic principle of the legal regime of the high seas,
which declares the high seas open to all states, whether coastal or landlocked.
Article 87 incorporates the traditional concept of freedom of the high seas,
comprising all activities of aircraft and ships, unless prohibited as harmful,
and without discrimination among the users. Overflight, as explicitly men-
tioned in Article 87(1)(b), is therefore just one example of the lawful uses of
the airspace above the high seas. Freedom of the high seas includes, inter alia,
use of the ocean airspace for military exercises, aerial reconnaissance, and all
other activities of civil and military aircraft if due regard is paid to the rights
and interests of third states.
It is doubtful, however, whether the reference to Article 87 in Article 58
covers all activities traditionally within the domain of the freedom of the high
seas, subject to the provisions of part V. While it is clear that within the EEZ
certain sovereign rights of coastal states, as defined in Article 56, preclude
unauthorized economic exploration and exploitation by third states, the Con-
vention does not clearly stipulate what legal regime is to apply with regard
to activities that are not explicitly covered by Article 56(1)(a). Similarly, it is
not altogether clear whether the list of a coastal state's jurisdictional rights
with regard to the uses mentioned in Article 56(1)(b) must be regarded as an
exhaustive enumeration, precluding any other exercise of jurisdiction in
the EEZ.
The solution to the questions raised is linked to the determination of the
s" See LAW OF THE SEA: NEGLECTED IssuEs, pt. III: Air Space and the Law of the Sea 119-
62 (j. K. Gamble ed. 1979).
504 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

legal status of the EEZ, one of the most controversial issues at the Law of the
Sea Conference. If the EEZ is not part of the high seas, the fundamental
principle would seem to be: coastal state jurisdiction with exceptions, to be
construed narrowly. If, however, the EEZ remains part of the high seas, free-
dom of the high seas will prevail and ICAO's aviation code will be applicable.
In circumstances not clearly regulated by the Convention, may a coastal state
exercise sovereign rights and jurisdiction or does the principle of freedom of
the high seas prevail? The answer may be of particular relevance to aviation
since in the Convention only the freedom of overflight is mentioned explicitly.
A survey of the vast literature on the EEZ does not provide unequivocal
answers to the issue." 7 The Group of 77 has succeeded in establishing a "sui
generis" status of the EEZ based, inter alia, on Article 68, under which the
provisions of part VII (High Seas) in general do not apply to the EEZ. s 8
Although there seems to be no unanimity on the exact legal consequences of
this qualification, the sui generis concept has mostly been used to "de-link"
freedoms granted to third states in the EEZ from the concept of freedom of
the high seas. Thus, A. M. Al Mour writes:
Nevertheless, freedoms enjoyed by other states in the EEZ are in no way
equal in their scope to high seas freedoms due to the restrictions imposed
on their exercise in accordance with para. (3) of article 58 of the con-
vention. Similarly, other internationally lawful uses of the sea recognized
to other states under para. (1) of article 58, are far away from being
equal to high seas uses entitled on high seas to all states. In fact, other
internationally lawful uses of the sea granted to other states under para.
(1) of article 58 are restricted not only by the limitations on their exercise
pursuant to para. (3) of this article, but also by the relation which must
exist between such uses and other states' freedoms in the EEZ. s9
On the other hand, it has been observed that the reference to freedom of
the high seas in Article 58(1) and to Articles 88-115 in Article 58(2) equals
acceptance of the legal regime of the high seas in regard to the EEZ for all
practical purposes.40 One might add that a number of delegations, including
that of the United States, have always stressed that the EEZ had to remain
a part of the high seas. 41 A look at the negotiating context shows that no
agreement could be reached on the legal status of the EEZ.42 Article 58

37 See Gfindling, Die exklusive Wirtschaftszone, 38 ZA6RV 616 (1978); Rojahn, 200
sm-IWirt-
schaftszone, Meeresfreiheit und Hochseeflscherei, V6lkerrechtliche Entwicklungslinien, 19 GERMAN Y.B.
INT'L L. 19 et seq. (1976); Qu~neudec, La Zone iconomique, 79 REv. GFNERALE DROIT INT'L
PUBLIC 321 (1975); Rama Purl, Evolution of the Concept of the Exclusive Economic Zone in UNCLOS
III: India's Contribution, 22J. INDIAN L. INST. 497 etseq. (1980).
" See Giindling, supranote 37, at 653-55, with references to the conference documents at 653
n.105; Jaenicke, supra note 28, at 485-91.
9
Al Mour, The Legal Status of the Exclusive Economic Zone, 33 REV. EGYPTIENNi: DROIT INT'L
35, 60-61 (1977).
40 Scerni, La Zone iconomique exclusive, son importance,sa naturejuridiqueet les problimes principaux
y relatifs, in 7 THESAURUS ACROASIUM 157, 183 (1977).
"' Scerni quotes the head of the U.S. delegation: "It is critical to the United States that the
economic zone remains high seas." Id. at 182.
42 For a detailed account, see Jaenicke, supra note 28, at 489; cf. also Brown, The Exclusive
Economic Zone: Criteriaand Machineyfor the Resolution ofInternationalConflicts between Different Users
of the EEZ, 4 MAR. POL'Y MGMT. 325 (1977).
19831 FREEDOM OF THE AIR

represents a compromise, accommodating the sui generis approach to objec-

tions to that approach.4" Article 55 supports this view by describing the EEZ
as an area subject to the specific legal regime of the Convention.
The lack of agreement about the legal determination of the EEZ is also
shown by the "Castafieda formula" in Article 59:
In cases where this Convention does not attribute rights orjurisdiction
to the coastal State or to other States within the exclusive economic zone,
and a conflict arises between the interests of the coastal State and any
other State or States, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances, taking into
account the respective importance of the interests involved to the parties
as well as to the international community as a whole.
Article 59, however, does not resolve the question of exactly what the rights
or jurisdictional powers attributed to the coastal state or to other states are,
nor does it indicate what legal regime should be applied if a peaceful settlement
in accordance with its terms cannot be reached. The reference to equity in
Article 59 must be construed as recognition that the legal status of the EEZ
is not to be determined according to preconceived terms but on the basis of
an evaluation of the respective rights and interests. Thus, the EEZ might be
considered as an evolving concept in which the rights and jurisdiction of the
coastal state and other states are only partly fixed by the Convention.
This concept, however, does not justify restrictions of the traditional free-
dom of overflight of the EEZ. Article 59 has to be construed narrowly. The
procedure referred to in Article 59 may lead to new jurisdictional rights of
the coastal state only insofar as subjects are concerned that are not regulated
by the Convention.
One should thus not expect too much of Article 59.44 In case of a conflict,
each side will claim that its rights or jurisdiction, conferred by the Convention
or customary international law, is at stake. Therefore, a third state would not
be precluded by Article 59 from claiming a right to peaceful military uses of
the airspace above the EEZ under Articles 58 and 88. We would suggest that
the scope of the rights and jurisdiction of the coastal state in the airspace
above the EEZ must be determined according to the "purpose for which the
question is asked." 4
First, those areas will have to be considered in which the Convention gives
the coastal state exclusive rights. The concept of "sovereign rights" in Article
56, paragraph 1 implies exclusive economic use of the EEZ by the coastal
state. Activities of aircraft of third states relating to "exploring and exploiting,
conserving and managing the natural resources, whether living or non-living,
of the sea-bed and subsoil and the superjacent waters, and with regard to
other activities for the economic exploitation and exploration of the zone,

4
Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session,
72 AJIL 57, 72 et seq. (1978).
"' See Gfindling, supra note 37, at 655; Qu~neudec, Un Probleme en suspens: la nature de la zone
iconomique, REV. IRANIENNE REL. INTERNATIONALEs 39, 40 (1975-76).
4
Oxman, supra note 43, at 74; Heller, Air Space over Extended JurisdictionalZones, in LAW OF
THE SEA, supra note 36, at 135, 144.
506 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

such as the production of energy from the water, currents and winds" (Article
56 (1)(a)), are thus subject to the sovereignty of the coastal state. The use of
aircraft to explore and exploit fishery resources, as well as for prospecting in
connection with economic exploitation of the EEZ, must be regarded as the
coastal state's exclusive right.
On the other hand, the freedoms granted in Article 58 must riot be con-
strued too narrowly. The sovereign rights of the coastal state pertain only to
the resources of the zone rather than to the zone itself. 6 During the nego-
tiations at the Law of the Sea Conference, it was repeatedly made clear that
the freedoms under Article 58 were qualitatively the same as the freedoms
of the high seas beyond the EEZ. Thus, the negotiating context supports
Bernard Oxman's view "that full freedoms are being preserved, not merely
passage rights, and that the application of existing international agreements
and regulations regarding navigation, overflight, spacecraft, and submarine
cables would be unchanged." 4
The freedom of overflight and other internationally lawful uses of the sea
related to this freedom under Article 58(1) differs from the freedom of ov-
erflight of international straits, which are part of the coastal state's territorial
sea. Article 58 freedoms include, inter alia, use of the airspace above the high
seas for military and civil purposes.4 The exercise of these rights may in a
particular case interfere with the coastal state's exclusive economic rights.
Flights may threaten the safety of installations for the exploitation of natural
resources. Article 58(3) provides:
States shall have due regard to the rights and duties of the coastal State
and shall comply with the laws and regulations adopted by the coastal
State in accordance with the provisions of 'this Convention and other
rules of international law in so far as they are not incompatible with
this Part.
It should be noted that this provision neither enlarges the regulatory authority
of the coastal state under the Convention nor limits the other states' freedoms.
Its sole purpose is to make clear that the freedoms under Article 58(1), just
like any other right, must not be exercised without taking into account the
rights of the coastal state.

Artificial Islands and Installations

According to Article 56(1)(b), the coastal state hasjurisdiction "with regard
to: (i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research; (iii) the protection and preservation of the ma-
rine environment." Earlier drafts spoke of "exclusivejurisdiction." 9 The text
of the Convention avoids such a qualification. Instead, subparagraph (b) of
Article 56(1) indicates the scope of these jurisdictional powers by referring

"Rama Puri, supra note 37, at 509.

4 Oxman, supra note 43, at 69; see also Clingan, Emerging Law of the Sea: The Economic Zone
Dilemma, 14 SAN DIEGO L. REV. 530 (1977).
4
"Jaenicke, supra note 28, at 490.
" For references, see Giindling, supra note 37, at 627.
1983] FREEDOM OF THE AIR

to the relevant provisions of the Convention and thus clarifies that the coastal
state's authority is determined by those provisions.5" Since the Convention
distinguishes between regulatory authority and enforcement powers (cf. Ar-
ticles 60 and 73), the term "jurisdiction" must not be interpreted as a com-
prehensive power.5 '
Article 60, dealing with artificial islands and installations, 52 may be of par-
ticular relevance to aircraft. It is doubtful whether the coastal state's juris-
diction extends to the movements by aircraft above, to, and from those in-
stallations. Under Article 60(1) the coastal state has
the exclusive right to construct and to authorize and regulate the con-
struction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article
56 and other economic purposes;
(c) installations and structures which may interfere with the exercise
of the rights of the coastal State in the zone.
While all artificial islands are subject to the coastal state's jurisdiction, in-
stallations may be constructed and operated without the coastal state's consent
if they are not used for the purposes mentioned in Article 56 or for other
economic purposes. Military installations used for aviation purposes are there-
fore not under the coastal state's exclusive jurisdiction.53 Proposals to cover
all installations were rejected since a number of states were prepared to accept
the EEZ concept only if military activities within the EEZ, including the move-
ments of aircraft, were not subject to the coastal state's control.54 Such in-
stallations, however, fall under the jurisdiction of the coastal state if they "may
interfere" with the exercise of its rights in the zone. A proposal by the Federal
Republic of Germany to limit the coastal state's authority solely to cases in
which installations and structures do interfere with those rights was not
accepted.55
The wording of Article 60(1)(c) may give rise to conflicts since objective
criteria for defining potential interference are not specified.56 It has to be
kept in mind, however, that under the Convention military activities of ships
and aircraft are in principle not under the coastal state's control. As an ex-
ception to this principle, Article 60(1)(c) must be narrowly construed in order
to avoid potential infringement upon other states' rights to use the EEZ for
noneconomic purposes.

5
"Jaenicke, supra note 28, at 489; cf.Giindling, supra note 37, at 627.
"' The term "jurisdiction" is usually understood as granting a special and limited competence
over particular events, in contrast to sovereignty, which is understood as a comprehensive and
continuous competence. Cf M. McDOUGAL & W. BURKE, THE PUBLIC ORDER OF THE OCEANS
610 (1962). Not much clarification, however, can be expected from the Convention's terms "ex-
clusive rights," "sovereign rights," "jurisdiction," and "exclusive jurisdiction."
52 See generally Minch, Les Ilesartificielles et les installationsen mer, 38 ZA6RV 933 (1978).
5
"Jaenicke, supra note 28, at 487 and 488 n.104.
"' Cf Giindling, supra note 37, at 640.
55See 3 DOKUMENTE DER DRITTEN SEERECHTSKONFERENZ, supra note 18, at 719.
56 Cf Giindling, supra note 37, at 640.
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW (Vol. 77
Article 60(1) provides for regulatory authority with regard to the construc-
tion, operation, and use of such installations and islands. Paragraph 2 adds
"exclusive jurisdiction" over those facilities, including "jurisdiction with re-
gard to customs, fiscal, health, safety and immigration laws and regulations."
It is questionable whether a coastal state's regulatory authority extends to
aircraft movements within the EEZ. The answer, again, depends on the con-
nection in which the question is asked. It is noteworthy that par: V lacks a
provision corresponding to Article 39(3)(a), which makes ICAO's Rules of the
Air mandatory upon aircraft during transit passage in. international straits.
On the other hand, the coastal state's regulatory authority under Articles 56
and 60 is limited to specific matters and may not easily be extended to the
movement of aircraft within the EEZ. Otherwise, control by coastal states over
large portions of the airspace above the oceans could be established. The
remaining two options, eitherjurisdiction of the state of registry of the aircraft
or attribution of rights and jurisdiction in each particular conflict on the basis
of Article 59, hardly seem to be satisfactory. The operation of different legal
regimes might endanger air navigation. In the interest of safety, one set of
rules would be clearly preferable to a variety of regulations based on each
aircraft's nationality.
This problem seems to have escaped the notice of the drafters of the Con-
vention. Paul Heller pointed to the inadequacies of the Informal Composite
Negotiating Text by suggesting an amendment that would have given the
coastal state jurisdiction over aircraft flying above the EEZ.57 In support of
this proposal, he referred to the recent trend of extending the coastal state's
control beyond the original limit of the territorial sea and to the advantage
of having a uniform legal regime throughout the coastal state's EEZ.58
This solution, despite its advantage of ensuring a uniform set of rules for
the territorial sea and the adjacent EEZ, would considerably extend the coastal
state's regulatory authority with regard to aircraft flying within or through
the EEZ. The coastal state's right to file deviations from international
standards with ICAO might lead to restrictions on the freedom of overflight
in the guise of regulations concerning the flight and maneuver of aircraft.
There are no legal limits, other than procedural requirements under the
Chicago Convention, to the exercise by states of their regulatory competence
over aviation activities within their airspace.
There is also the danger of inadequate safety standards if the coastal state's
regulatory authority were to prevail over ICAO's aviation code. It is therefore
suggested that in the airspace above the EEZ, ICAO's Rules of the Air should
be mandatory.5 9 The basic idea of Article 12 of the Chicago Convention is
to provide an international uniform minimum standard of safety, which is not
always achieved in national civil aviation. The advantages of such a legal

17 See Heller, supra note 45, at 135-53; cf. Hailbronner, Commentary, in LAW OF TlE SEA,
supra
note 36, at 154-58.
58 Heller, supra note 37, at 148.
9Where a contracting state accepts the responsibility of providing air traffic services over the
high seas, standards and recommended practices may be applied "in a manner consistent with
[those] adopted for airspace under its jurisdiction" (see text at note 7 supra).
19831 FREEDOM OF THE AIR 509

regime seem to explain its explicit adoption in the Convention for transit
flights through straits and archipelagic waters; but one may hardly deduce
from the silence of the Convention an implicit civil aviation jurisdiction with
regard to all aircraft movements within the EEZ. Coastal state jurisdiction is
expressly limited to specific matters, which ensures that other states' rights
may not be unduly hampered by the exercise of wide jurisdictional powers.
The concept of residual rights may not be used to support the trend towards
"creeping jurisdiction" of the coastal state. According to Article 89, "[n]o
State may validly purport to subject any part of the high seas to its sover-
eignty." If the reference to this provision in Article 58(2) is to have any
significance, it can only mean that a coastal state's jurisdiction, as defined by
Article 56, cannot be extended to far-reaching control over aircraft move-
ments through or within the airspace above the EEZ.
Unlike the rules relating to the flight and maneuver of aircraft, ICAO's
operational standards (e.g., airworthiness, equipment, training of the crew) are
not part of the Rules of the Air, which are mandatory in the airspace above
the high seas. The state of registry of an aircraft is primarily authorized to
enact such regulations and they may deviate from ICAO's standards and rec-
ommended practices. Thus, operational aviation rules usually conform to the
state of registry's legal order unless a state, exercising its sovereign powers,
makes its operational rules-in part or totally-obligatory upon foreign air-
craft flying in the airspace above its territory or its territorial sea.60 In the
latter case, territorial sovereignty, comprising regulatory authority and en-
forcement power with regard to all aviation activities within a state's airspace,
overrules the state of registry's operational regulations.
The coastal state's jurisdiction over the EEZ does not extend to the power
to prescribe operational rules with regard to foreign aircraft. Operational
control of the aircraft flying within the EEZ is not linked to the exercise of
the coastal state's sovereign economic rights. Regulatory authority over the
operation of foreign aircraft within the EEZ would therefore run counter to
the concept of exclusive economic rights and the related jurisdiction of the
coastal state over the EEZ. The same legal regime applies to the operational
rules for aircraft flying within the EEZ as to those for flights above the
high seas.
The situation may be different with regard to aircraft movements to and
from installations or artificial islands within the EEZ. Although it may be
questioned whether such movements are covered by the "exclusive right to
regulate the operation and use of such installations," paragraph 2 of Article
60 indicates that exclusive jurisdiction is meant to be a comprehensive reg-
ulatory authority reaching beyond the reference to particular governmental
interests (customs, fiscal, health, safety, immigration). Jurisdiction in respect
of flights to and from those structures and islands is inseparably interconnected
with the coastal state's exclusive rights to construct and use the installations.
Landings and takeoffs at airports established within the EEZ inevitably affect
0 Cf M. McDOUGAL & W. BURKE, supranote 51, at 1080 etseq.; M. McDOUGAL, W. BURKE,
& 1. VLASIC, LAW AND PUBLIC ORDER IN SPACE 254 et seq. (1964); W. SCHWENK, supra note
9, at 37 et seq. and 117.
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

a coastal state's rights of control over these installations and islands. Prior to
the drafting of the Law of the Sea Convention, it was suggested that the
coastal state should be granted jurisdiction over activities on such structures
when those activities affect its economic or security interests. 6' Since the mere
occurrence of landings and takeoffs always affects its interests, it seems rea-
sonable to grant the coastal state exclusive aviation jurisdiction over the struc-
tures referred to in Article 60, paragraph 12
State practice supports this view. National continental shelf regulations usu-
ally have extended aviation jurisdiction over such islands, installations, and
structures. Landings and takeoffs, as well as the operation of helicopter services
to and from those structures, have been subjected to regulations concerning
licensing, airport requirements, traffic rules, insurance, and liability. 3 Article
60(2) and Article 80, which refers to artificial islands, installations, and struc-
tures on the continental shelf, have codified this practice. Exclusive jurisdic-
tion, however, is vested in the coastal state only with regard to the structures
mentioned in Article 60(1). Installations not used for the purposes provided
for in Article 56 and other economic purposes are not subject to the coastal
state's exclusive jurisdiction.
In addition, the exercise ofjurisdiction under Article 60(2) does not justify
general restrictions on the freedom of flight over those installations. The right
to establish safety zones around those structures is limited to navigation. Aerial
safety zones in which freedom of overflight may be suspended or restricted
are not mentioned in Article 60. Nevertheless, in order to avoid navigational
hazards, the coastal state may require aircraft flying over those facilities to
comply with its national traffic regulations relating to such structures. Air
traffic control over these installations necessarily implies control of aircraft
flying over and around them. In order to avoid conflicts with other states'
rights to use the airspace above the EEZ, such installations may not be estab-
lished-on the analogy of Article 60(7)-where interference with the use of
recognized air lanes essential to international aviation may be caused.

Protectionand Preservationof the Marine Environment

Under paragraph 1 of Article 56, the coastal state has jurisdiction with
regard to the protection and preservation of the marine environment.6 4 Part
XII of the Convention contains an elaborate set of rules designed primarily
to prevent marine pollution from vessels, installations, and land-based sources.

61 WalkerJurisdictionalProblems Created by Artificial Islands, 10 SAN DIEGO L. REV 662 (1973);

Knight, InternationalLegal Aspects of Deep Draft HarborFacilities,4 J. MAR. L. & Cois. 386 et seq.
(1972-73).
61 Cf the statement of A. SOONS, ARTIFICIAL ISLANDS AND INSTALLATIONS IN INTERNA-
TIONAL LAW 22 (Occasional Paper No. 22, Law of the Sea Institute, 1974), quoted in Heller, supra
note 45, at 149.
65 Cf Heller, supra note 45, at 150; Lawrence, Superports, Airports and Other Fixed Installations

on the High Seas, 6 J. MAR. L. & CoM. 575, 580 (1975); Schwenk, Die Anwendung luflrechtlicher
Vorschriflen bei Fl.gen von und nach Schiffen und Bohrinseln, 25 ZEITSCHRIFT FUR LuFr- UND
WELTRAUMRECHT 234 (1976).
64 See generally Kiss, La Pollution du milieu marin, 38 ZAoRV 902 (1978).
19831 FREEDOM OF THE AIR

The possibility of marine pollution from civil aircraft is mentioned in Article

212.6" It provides that states shall adopt laws and regulations and take other
measures:
to prevent, reduce and control pollution of the marine environment from
or through the atmosphere, applicable to the air space under their sov-
ereignty and to vessels flying their flag or vessels or aircraft of their
registry, taking into account internationally agreed rules, standards and
recommended practices and procedures and the safety of air navigation.

Furthermore, "States, acting especially through competent international or-

ganizations or diplomatic conference, shall endeavour to establish global and
regional rules, standards and recommended practices and procedures to pre-
vent, reduce and control such pollution" (Article 212(3)).
Article 212 adds nothing new to the existing pattern of lawmaking under
the Chicago Convention and customary international law, with the possible
exception that pollution from aircraft is not explicitly mentioned in Article
37 of the Chicago Convention, although standards relating to pollution from
the atmosphere may be considered "matters concerned with the safety, reg-
ularity and efficiency of air navigation." It is basically up to each state to
prescribe pollution standards for its own national aircraft wherever they may
be and for all aircraft flying within its own airspace. Enforcement, too, rests
with the state of registry of the aircraft or the state exercising its sovereign
rights within its airspace. Article 222 obliges those states to enforce such
pollution standards and to:
adopt laws and regulations and take other measures necessary to imple-
ment applicable international rules and standards established through
competent international organizations or diplomatic conference to pre-
vent, reduce and control pollution of the marine environment from or
through the atmosphere, in conformity with all relevant international
rules and standards concerning the safety of air navigation.
Articles 212 and 222 exclude coastal state jurisdiction over foreign aircraft
that have violated marine pollution and environmental standards as a con-
sequence of their construction or equipment. Under customary international
law, however, a state may require foreign aircraft to comply with such stan-
dards as a condition to entry into its airspace, provided international treaty
obligations are met. The Convention, in providing explicitly for port state
authority only in cases of pollution by ships (cf. Article 218), does not exclude
recourse to a state's sovereign rights in its airspace. However, these sovereign
rights would have to be exercised in accordance with the limitations established
by the Convention on the state's regulatory authority. Thus, enforcement
measures against foreign aircraft and their crews, including prosecution and
punishment, may not be based on a violation committed in the airspace above
the EEZ or the high seas since the Convention excludes coastal state regulatory

'5 According to Article 236, the provisions of the Convention do not apply to "aircraft owned
or operated by a State and used, for the time being, only on government non-commercial service."
States, however, shall ensure that such aircraft "act in a manner consistent, so far as is reasonable
and practicable, with this Convention" (see, for a critical comment, id. at 907).
512 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

jurisdiction over those areas. Under international agreements on the protec-

tion of the environment, however, states may agree to prosecute such viola-
tions wherever they are committed.66
It has been asked whether the failure to confer jurisdiction over protection
of the marine environment in the EEZ on the coastal state can be considered
wise in view of its environmental interests. Professor Carl Chris.ol has re-
marked that this failure runs "contrary to the establishment of coastal state
standards for fisheries running out to 200 miles and to the even more extended
authority that a state may exercise with respect to . . .security concerns."67
It is debatable, however, whether reliance on doubtful claims to control over
the high seas for security concerns is an argument in favor of extending coastal
state jurisdiction within the EEZ. The exercise of far-reaching environmental
authority might impose significant limitations on the freedoms of navigation
and overflight. Although the establishment of effective environmental stan-
dards for aircraft flying above the EEZ and the high seas would be highly
desirable, extension of coastal statejurisdiction would probably not be of much
help in achieving this goal. What is generally asked for is the setting of uniform
standards by some international machinery rather than a variety of national
environmental regulations.
Nevertheless, under certain circumstances a coastal state's environmental
interests may be seriously affected by the activities of aircraft above the EEZ.68
The negative impact of their normal fuel consumption will usually be negli-
gible, but other kinds of fuel and other types of aircraft may pose major
concerns.69 The atmosphere of a coastal state may be seriously endangered
by space shuttles passing through the EEZ in the vicinity of its territorial
waters, or by the deposit of radioactive materials during weapons tests. 7 0 In
addition, aircraft may influence a coastal state's climate and in so doing create
environmental hazards. Weather modification in the airspace above the oceans
has recently become a topic of scientific discussion although its practical ap-
plicability still seems far off. 7 ' Finally, the impact of aircraft fuel upon the
ozone layer in the atmosphere is currently under study.7 2
The Convention does not dispose of these questions. The use of aircraft
in the exploration and exploitation of the natural resources of the waters,
including areal surveillance of fishing activities, is covered by Article 56. Part
XII deals with the preservation of the marine environment. Environmental

'See Convention d'Oslo pour ]a prevention de la pollution marine par le; operations
d'immersion
67
effectu&s par les navires et a6ronefs, Feb. 15, 1972, 1977 BGBI.II 165.
Cf Christol, Unilateral Claimsfor the Use of Ocean Airspace, in LAW OF THE SEA, supra note
36, at 130-31.
" For a discussion of the claims relating to pollution control, see M. McDOUGAL 8: W. BURKE,
supra note 51, at 848 et seq.; M. McDOUGAL, H. LASSWELL, & 1. VLASIC, supra note 60, at 308,
plead for the application ofantipollution regulations in the contiguous zone with respect to aircraft.
69 Christol, supra note 67, at 160.
70
M McDOUGAL & W. BURKE, supra note 51, at 852 et seq.
7'Roberts, The State of the Art in Weather Modification, in WEATHER MODIFICATION AND THE
LAW 1, 20-21 (H. J. Taubenfeld ed. 1968).
72
Christol, Aircraft and the InternationalLegal and Institutional Aspects of the Strato;pheric Ozone
Problem, 1 ANNALS AIR & SPACE L. 3 (1976).
1983] FREEDOM OF THE AIR

hazards not specifically related to the marine environment are not dealt with
by the Convention. It is not beyond doubt whether, on environmental matters,
the Convention can be considered an exhaustive regulation of a coastal state's
jurisdiction over the airspace above its EEZ.

Marine Scientific Research

Marine scientific research is the last area in which the coastal state, under
Article 56(1)(b) and Articles 245 et seq., is assigned jurisdiction. 7 Marine sci-
entific research, though primarily conducted by ships, may also be engaged
in by aircraft in relation to the noneconomic uses of the oceans. While general
jurisdiction over research aircraft lies with the state of registry, 74 paragraph
I of Article 246 gives coastal states the right to regulate, authorize, and con-
duct marine scientific research in their EEZ's and on their continental shelves.
In contrast to Article 245, this right is not "exclusive," but other states may
conduct such research only with the consent of the coastal state (Article
246(2)). The somewhat vague obligation to give consent "in normal circum-
stances" and the exceptions provided for in Article 246(5) leave it basically
to the discretion of the coastal state to allow scientific research with respect
to the marine environment by foreign aircraft.75

V. AIRSPACE ABOVE THE HIGH SEAS AND

THE EEZ-ADDITIONAL CLAIMS

Major Claims
The airspace above the high seas is open to aircraft of all states for peaceful
purposes (cf. Articles 87(1) and 88). The Convention only codifies in this
regard the principle recognized by customary international law that no state
may validly purport to subject any part of the high seas to its sovereignty. It
follows that foreign aircraft in the airspace above the high seas must not be
subjected to the control of the adjacent state. 76 Only in very specific circum-
stances do states have exceptional and limited jurisdictional and enforcement
rights with regard to flights of this kind. 77 For example, every state has the
right to "seize a pirate . . . aircraft, or . . . aircraft taken by piracy and
under the control of pirates, and arrest the persons and seize the property on
board" (cf Article 105).78
In addition, under customary international law a coastal state may exercise,
in a zone contiguous to its territorial sea, such control as is necessary to prevent
and punish the infringement of its customs, fiscal, immigration, or sanitary

7s See generally Caflisch & Piccard, The Legal Regime of Marine Scientific Research and the Third
United
7
Nations Conference on the Law of the Sea, 38 ZAoRV 848 (1978).
4 Id. at 888.
7' Giindling, supra note 37, at 642-43; Caflisch & Piccard, supra note 73, at 873 etseq.; Wolfrum,

Der Schutz der Meeresforschung im V46kerrecht, 19 GERMAN Y.B. INT'L L. 99, 99 (1976).
76j. C. COOPER, THE RIGHT TO FLY 126 (1947).
77 For a general discussion of claims with respect to access to airspace above the high seas, see
M.7 McDoUGAL
8
& W. BURKE, supra note 51, at 782-94.
Id. at 806-23.
514 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

laws and regulations within its territory or its territorial sea. 9 The concept
of the contiguous zone is taken up by the Convention with the modification
that it may not extend beyond 24 nautical miles (Article 33). The contiguous
zone, now that it is generally situated within the EEZ, is not covered by part
VII of the Convention, which relates to the legal status of the high seas. As
mentioned earlier, however, the concept of the EEZ did not result in a general
extension of the coastal state's jurisdiction with regard to foreign aircraft
flying above the EEZ. The jurisdiction of the coastal state in the contiguous
zone therefore did not change qualitatively or quantitatively because of the
shift to a sui generis legal regime for the EEZ. The coastal state may exercise
its rights in the contiguous zone with respect to foreign ships and aircraft that
violate its laws and regulations. Although the concept of the contiguous zone
is generally discussed in the context of the seizure of ships and punishment
of their crews, the activities of aircraft in the airspace above areas adjacent
to the territorial sea may likewise affect a coastal state's interests (as referred
to in Article 33) and give rise to preventive action or prosecution."0 Since
enforcement action against aircraft may result in the loss of human life, in-
terception or shooting as a last resort to enforce compliance with a coastal
state's laws is generally not permissible. Such a use of force would be altogether
out of proportion to the interests pursued by the coastal state." Even if an
order to land is deliberately disregarded, a civil unarmed aircraft that.intrudes
into foreign airspace may not be fired upon."2 Similar restrictions apply when
enforcement measures are taken against foreign aircraft above the contigu-
ous zone.
The right of hot pursuit is a third matter on which the Convention grants
extended coastal state authority along the lines of customary international
law."3 According to paragraph I of Article 111, hot pursuit of a foreign ship
into the high seas may be undertaken when the competent authorities of the
coastal state have good reason to believe that the ship has violated the laws
and regulations of that state. Such pursuit must be commenced when the
foreign ship or one of its boats is within the internal waters, the archipelagic
waters, the territorial sea, or the contiguous zone of the pursuing state, and
it may only be continued beyond the territorial sea or the contiguous zone
if it has not been interrupted.
It should be noted that paragraph 1 of Article 111 speaks only of the hot
pursuit of ships by warships or military aircraft (cf. Article 111(5) and (6)).
Under the Convention, hot pursuit of an aircraft beyond the territorial sea
or the contiguous zone is not permissible.
Likewise, the language of Article 109 suggests that unauthorized broad-

79
1Id. at
584 et seq.; Oda, The Concept of the Contiguous Zone, 11 INT'L & COMP. L.Q. 131 (1962).
80
Martial, State Control of the Airspace over the TerritorialSea and the Contiguous Zone, 30 CAN.
B. REV. 245 (1952); Head, ADIZ, InternationalLaw and Contiguous Airspace, 3 ALTA. L. REv. 182
(1964); M. MCDOUGAL, H. LASSWELL, & 1. VLAsic, supra note 60, at 294 et seq. and 308.
81 See K. HAILBRONNER, DER SCHUTZ DER LUFTGRENZEN IM FRIEDEN 87 et s,'q. (1972).
12 For a comprehensive account of the legal aspects of the treatment of aerial intruders and
further references, see id. at 41 et seq.
83 See N. POULANTZAs, THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW (1969),
19831 FREEDOM OF THE AIR

casting only from ships or installations on the high seas is subject to the ju-
risdiction of the coastal state where the transmission can be received (Article
109(3) and (4)). Nevertheless, in one of the rare comments on the air law
implications of the new law of the sea, it is suggested "that it is not beyond
doubt as to whether the provision of Article 109 about unauthorized broad-
casting from the high seas applies only to broadcasting from vessels on the
high seas, or also to broadcasting from aircraft flying over the high seas." 4
This casual remark raises a question reaching far beyond the problems of
unauthorized broadcasting and hot pursuit of aircraft. To what extent does
the Convention exhaustively regulate the rights and duties of states in the
airspace above the oceans? May a coastal state's jurisdiction be extended to
aircraft even though the Convention refers only to ships?
There are several claims to control over the airspace above the high seas
or the EEZ, most of them invariably connected with the protection of a coastal
state's security or public order, that are not explicitly dealt with in the Con-
vention. 85 It was mentioned earlier that the conflict resolution clause of Article
59 has to be read as recognizing the EEZ as an evolving concept. Rights or
jurisdiction of the coastal state or of other states may grow out of the settlement
of particular conflicts under Article 59. This interpretation precludes viewing
the EEZ as an area in which the rights and obligations of states are exhaustively
regulated by the Convention. Particularly with regard to future technological
developments that were not foreseen by the drafters of the Convention, rights
or jurisdiction may have to be attributed according to Article 59. In addition,
there may be specific air law matters that the Convention was not intended
to deal with. Like earlier Law of the Sea Conferences, the Third Conference
on the Law of the Sea did not purport to settle matters specifically related to
the movement of aircraft. 6 On the other hand, freedom of overflight, as an
integral part of the legal order of the seas and oceans, is included in the
regulatory framework of the Convention. Thus, it is difficult to argue that
"certain provisions. . ., although intended to apply to ships, are so drafted
that they could either by interpretation or by analogy be considered as capable
of application to aircraft also." 7 In case of a particular conflict, claims to the
analogous application of other law of the sea provisions have to be examined
closely, taking into account the respective interests of the parties concerned.

Air Defense Identification Zones

A major claim to aerial jurisdiction relates to the establishment of air de-
fense identification zones (ADIZ's). According to U.S. regulations,8 8 aircraft

8"Heller, supra note 45, at 140.

85 See M. McDoUGAL & W. BURKE, supranote 5 1, at 782 et seq.; M. McDOUGAL, H. LASSWELL,
& I.6 VLAsIC, supra note 60, at 306 et seq.
1 See [1956] 1 Y.B. INT'L L. COMM'N 58, UN Doc. A/CN.4/SER.A/1956.
" See a comment by the ICAO on the ILC draft convention, 1 UNITED NATIONS CONFER-
ENCE ON THE LAW OFTHE SEA, OFFICIAL RECORDS 336, UN Doc. A/CONF.13/31 (1958); cf.
N. POULANTZAS, supra note 83, at 302.
" Security Control of Air Traffic, 14 C.F.R. pt. 99 (1982); seeJ. MURCHISON, THE CONTIG-
UOUS AIR SPACE ZONE IN INTERNATIONAL LAW 87-94 (1957).
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

with the intention of entering U.S. airspace and departing aircraft must pro-
vide identification and location reports one hour's flying time before pene-
trating U.S. airspace. Within ADIZ's, no aircraft may deviate front the flight
plan and instructions of the air traffic control authorities. Similar provisions
were enacted by the Canadian authorities, with the modification that infor-
mation is also required from aircraft passing through the Canadian zone even
though not flying to Canada.8 9 Former French regulations, which applied to
the area off the Algerian coast, additionally provided for the right to intercept
or fire upon aircraft not complying with such requirements.9 " ADIZ's have
usually been justified by analogy to the contiguous zone concept or by the
doctrine of necessity.9" The early identification and control of foreign aircraft
has been declared necessary to prevent surprise attacks or infringements upon
essential security interests and to ensure the safety of international air traffic."
The security interests of states have also been invoked to establish per-
manent restricted or prohibited areas adjacent to their coasts. Libya has as-
serted such aerial zones, extending 100 nautical miles from Tripoli, and U.S.
93
military aircraft have repeatedly been intercepted and fired upon in them.
The U.S. Government has strongly protested against such measures and
claimed a right of overflight in the zones.
The Convention does not attribute rights or jurisdiction to the coastal state
with regard to aerial defense. The coastal state's military security and defense
are only casually referred to in Article 39, in connection with the duties of
ships and aircraft during transit passage. It is suggested that the Convention
was not intended to settle specific problems of restrictions on the freedom of
overflight for defense purposes. This does not mean, however, that the Con-
vention has opened the door to claims that have hitherto been regarded as
inconsistent with the traditional concept of freedom of overflight. Again,
Article 59 must not be considered as carte blanche for claims to jurisdiction
in all cases where the Convention does not attribute such rights orjurisdiction.
Customary international law has to be taken into account when Article 59 is
invoked as a basis for the attribution of rights and jurisdiction.
With regard to prohibited defense areas adjacent to the territorial sea, state
practice supports the view that the establishment of permanent restricted
aerial zones beyond the airspace above territorial waters would amount to the

89
Can. Dep't of Transport, Rules for the Security Control of Air Traffic, Notam No. 22/55;
seeJ. MURCHISON,supranote 88, at 79-86; U. LEANZA, FENOMENI DI ZONA CONTIGUIT, AEREA
NEL DIRITTO INTERNAZIONALE 231-41 (1961).
" Zone rhglementhe No. 230, reprintedin Debbasch, La Zone contiguien droit agrien, Ann. I, 24
REV. GiNiRALE L'AIR 249, 260 (1961).
91
J. MURCHISON, supra note 88, at 1 et seq.; Head, supra note 80, at 182 el eq.; Hayton,
Jurisdictionof the LittoralState in the "Air Frontier," 3 PHIL. INT'L L.J. 369 (1964); Georgiades, Du
nationalismeariend I'internationalismespatial ou le mythe de la souverainetiatrienne, 16 REV. FRAN-
rAisE DROIT AiRIENNE 129 (1962); M. McDoUGAL, H. LASSWELL, & I. VLASIC:, supra note
60, at 306 et seq.; cf. for a discussion of the arguments referred to in favor of the ADIZ, K.
HAILBRONNER, supra note 81, at 73 et seq.
92 Christol, supra note 67, at 128-30.
9s 1973 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAw 302; 1975 id. at
451.
1983] FREEDOM OF THE AIR

exclusive use and control of such areas and would therefore be inconsistent
with customary international law.94 Thus, in protesting against Libya's action,
the United States argued that the establishment of such areas is inconsistent
with the Chicago
95
Convention and generally recognized principles of inter-
national law.
Claims to the temporary exclusive use of certain areas above the high seas
may be seen in a different light." Although the legitimacy of weapons testing,
involving the temporary closure of large areas of airspace, has been highly
controversial,9 7 the occasional peaceful military use of the airspace above the
high seas must generally be regarded as a legitimate form of enjoyment of
the freedom of overflight. Rocket tests have been conducted by the United
States and the USSR in the airspace above the high seas. 9 8 On the other hand,
the U.S. hydrogen bomb tests were strongly attacked at the 1958 Conference
on the Law of the Sea. 99 As long as restrictions on the freedom of overflight
occur as an unavoidable effect of an "eo ipso" legitimate enjoyment of the
freedom of the high seas, conflicts have to be resolved on the basis of general
principles of reasonableness. 0 The establishment of temporary prohibited
zones or temporary restrictions on the movements of aircraft in large areas
above the high seas may prove to be excessive, harmful to other states, or
tantamount to undue interference with international aviation routes.
In contrast to the temporary military use of the airspace over the high seas,
the establishment of air defense identification zones on a permanent basis
raises the question of the coastal state's jurisdiction. While the requirement of
identification in itself, without interference with an aircraft's movements, can
hardly be considered a restriction on the freedom of overflight, enforcement
measures and the imposition of regulations that provide for flight rules and
the possible prosecution of the pilot amount to an extension of the coastal
state's jurisdiction. The principle enunciated in Article 89 of the Convention,
that no state may validly purport to subject any part of the high seas to its
sovereignty, is prima facie opposed to any claim of control over foreign aircraft
on a permanent basis. Some writers, however, have argued that the only
effective self-defense may be interception by defending fighter aircraft or
guided missiles, and that must be undertaken before the attackers have ap-

'4 Christol, supra note 67, at 129; laPradelle, supra note 10, at 146-47; W. SCHWENK, supra
note 9, at 116.
9 1973 DIGEST, supra note 93, at 303.
McDougal & Schlei, The Hydrogen Bomb Tests in Perspective: Lawful Measuresfor Security, 64
YALE L.J. 648 (1955); M. McDoUGAL, H. LASSWELL, & I. VLASIc, supra note 60, at 303; M.
McDoUGAL & W. BURKE, supranote 51, at 787.
97See McDougal & Schlei, supra note 96; Margolis, The Hydrogen Bomb Experiments and Inter-
national Law, 64 YALE L.J. 629 (1955); and Gidel, Explosions nucliairesexpgrimentales et liberti de
la haute mer, in GRUNDPROBLEME DES INTERNATIONALEN RECHTS, FESTsCHRIFT FUR JEAN
SPIROPOULOS 173 (1957).
9"M. McDOUGAL & W. BURKE, supra note 51, at 787.
Ibid.
" For the discussion of the principle of "reasonableness" by the International Law Commission,
see [19561 1 Y.B. INT'L L. COMM'N, supra note 86, at 34; M. McDOUGAL & W. BURKE, supra
note 51, at 761.
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

proached. Such a defense would vitally depend on adequate and timely iden-
tification.' 0 ' While identification of approaching military aircraft may be re-
quired for reasons of security, it is difficult to see how enforcement measures,
including interception of foreign aircraft passing through restricted zones and
prosecution of their pilots for failure to follow a prescribed route or to file
flight plans, can be justified under customary international law. Preventive
measures as an exercise of the right of self-defense may only be taken in case
of imminent danger if the doctrine of necessity is to be kept within reasonable
limits. 0 2
In addition, the analogy of air defense identification zones to the concept
of maritime contiguous zones has been advanced as a major argument in their
favor. This analogy, however, neglects the essential factor that 'neither the
Convention itself nor earlier drafts and codifications recognize special security
rights in the contiguous zone. In 1956, the International Law Commission,
in explaining its rejection of various proposals to incorporate the concept of
security into the contiguous zone scheme, pointed out:
[T]he extreme vagueness of the term "security" would open -the way for
abuses and. . . the granting of such rights was not necessary. The en-
forcement of customs and sanitary regulations will be sufficient in most
cases to safeguard the security of the State. In so far as measures of self-
defence against an imminent and direct threat to the security of the State
are concerned, the Commission refers to the general principles of inter-
national law and the Charter of the United Nations.'

In spite of heavy criticism, this view prevailed at all the Law of the Sea
Conferences. 0 4 Both the 1958 Geneva Convention on the High Seas and the
present Convention clearly allow (and restrict) the exercise of authority for
specific purposes, not including security. This concept may be considered
"decidedly anachronistic" and "far removed from desirable community pol-
icies"; 0 5 it nevertheless reflects the communis opinio of states. While it may be
true, as McDougal and Burke assert, 0 6 that claims to the occasional exclusive
use of high seas areas have encountered only little objection, claims to ex-
tendedjurisdiction, including enforcement measures in the airspace above the
high seas on a permanent basis, have never been generally accepted, as is
shown by the protests of several states against the former French air defense
zones off the Algerian coast.' 0 7 It is therefore very doubtful whether claims

1
'OJ. MURCHISON, supra note 88, at 55.
02
1 See K. HAILBRONNER, supra note 81, at 94-97;J. VERPLAETSE, INTERNATIONAL LAW IN
VERTICAL SPACE 83 (1960).
103 Report of the International Law Commission to the General Assembly, I I UN GAOR Supp.
(No. 9) at 39-40, UN Doc. A/3159 (1956), reprinted in [1956] 2 Y.B. INT'L L. COMM'N 253,
295, UN Doc. A/CN.4/SER.A/1956/Add.1; cf the report of J. Francois, UN Doc. A/CN.4/
97, at 13-14 (1956), reprintedin id. at 1, 5-6.
104 For an analysis of the discussion, see M. McDOUGAL & W. BURKE, supra note 51, at 604

et seq.; K. HAILBRONNER, supra note 81, at 88 et seq.

105 M. McDOUGAL & W. BURKE, supra note 51, at 605 and 606.
"6 1d. at 594; see also M. McDOUGAL, H. LASSWELL, & I. VLASIC, supra note 60, at 310.
107 For the state practice, see K. HAILBRONNER, supra note 81, at 81-87.
1983] FREEDOM OF THE AIR

to extended jurisdiction for security purposes in the airspace above the high
seas have been approved by a considerable number of states.

Hot Pursuit of Aircraft

Finally, the right of hot pursuit, confined by the Convention to the hot
pursuit of ships, has been said to embrace the hot pursuit of aircraft as well.' 0 9
Neither state practice nor the opinion of legal writers supports this view,1
if hot pursuit is understood as the right to intercept foreign aircraft above
the high seas. State practice, as reflected in national regulations, usually refers
only to the pursuit of ships. While there have been occasional instances of hot
pursuit of aircraft in the airspace above the high seas, it is remarkable that
such a right has rarely been claimed officially." l0 Usually, the use of force has
been justified by invoking the right of self-defense against imminent attack
or the sovereign rights of a state within its own airspace.
In addition, the analogy to the law of the sea does not take into account
the essential differences between the navigation of ships and the movement
of aircraft."' Interception of aircraft is likely to endanger the security of the
plane and its crew. It is hard to imagine that infringement of a coastal state's
regulations could justify the use of force against civil aircraft, but the right
to hot pursuit of aircraft could easily have dangerous results and would be
open to abuse. The withdrawal of a proposal advanced by Chile during the
first Law of the Sea Conference at Geneva, which would have included hot
pursuit of one aircraft by another, indicates that a large majority of states
have never supported such a right." 2 On the basis of this discussion, the
confinement of the concept of hot pursuit to ships in Article 111 of the Con-
vention must be deemed a rejection of extended claims to jurisdiction with
regard to foreign aircraft flying in the airspace above the high seas or
the EEZ.

CONCLUDING REMARKS

The new law of the sea considerably affects the legal regime of the airspace
above the oceans. With the extension of sovereign or "quasi-sovereign" pow-
ers to coastal states, the traditional rule of the freedom of the air above the
high seas no longer appears to guarantee sufficiently the free movement of
civil and military aircraft across the oceans. Some of the fears that international
aviation may be drastically curtailed have been alleviated by the new concept
of transit passage for aircraft in international straits and archipelagic air routes,
as well as the right of freedom of navigation in the EEZ. There are questions,

108 M. McDOUGAL, H. LASSWELL, & I. VLAsic, supra note 60, at 310; N. POULANTZAS, supra
note 83, at 298 et seq.
"'9 For a more detailed discussion of this issue, see K. HAILBRONNER, supra note 81, at
100-09.
"lId. at 101. "Id. at 109.
12 UN Doc. A/CONF.13/5 and Adds. 1-4 (1958), 1 UNITED NATIONS CONFERENCE ON
THE LAW OF THE SEA, OFFICIAL RECORDS 75, 78-79; 4 id. at 90 et seq.
 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

however, concerning the exact scope of the right of transit passage, the legal
regime of the airspace above the EEZ, and the rights and duties, of coastal
states concerning transiting aircraft that are yet to be answered.
The Convention does not always provide easy answers to these questions.
This is mainly due to the fact that the Convention is to some extent ambivalent.
Different parts of the Convention reflect different perceptions of how to rec-
oncile conflicting interests. The determination of the legal status of the EEZ
is just one example. A balance between freedom of the air and jurisdictional
claims of the coastal states has to be achieved. The approach to finding this
balance suggested in this article is based on the assumption that the Convention
must be interpreted in favor of the customary law principle of the freedom
of the air. The Convention itself has incorporated the traditional concepts of
the freedom of the high seas and the airspace above the seas. The attribution
of rights and jurisdiction can therefore hardly be understood as an exhaustive
new legal framework for the seas and the airspace above the seas but rather
as a compromise whereby new rights and powers of states have been acknowl-
edged in areas hitherto regarded as res communis omnium. As a result, the
extension of territorial sovereignty by coastal states has to be interpreted
narrowly. States claiming to have acquired new rights have a burden of proof.
They may rely on the Convention only to the extent that it explicitly grants
regulatory competence and enforcement power. On the other hand, tradi-
tional rights of coastal states to restrict the freedom of aviation in exceptional
circumstances are not affected by the Convention.
Consequently, the right of overflight contained in the transit passage regime
is not subject to any restrictions by coastal states based on the duties of tran-
siting aircraft referred to in Article 39 of the Convention. It is essential to
distinguish clearly between prescriptive regulatory authority and/or enforce-
ment power of the coastal state and duties of transiting aircraft. The Con-
vention neither grants coastal states the power to define "the normal modes
of continuous and expeditious transit" nor allows any interference with tran-
siting aircraft. Exceptionally, however, in case of a threat to a coastal state's
vital security interests, that state may invoke an inherent right of preventive
self-defense recognized under customary international law.